Very detailed questions that I can't even try to answer. I expect that
the specifics could vary a lot in different jurisdictions.
I do want to clarify that I was not accurate when said that commercial
use was basically when you made money from the photo. Your first
examples suggested using the photos for publications or advertising
which I believe would be commercial use. But I don't think hat the same
issues pertain to all situations where one makes money from the photo.
Obviously, newspapers try to make money off the content they publish,
but none the less journalistic use in not the same as commercial.
Selling individual prints for profit may or may not be commercial use.
Suggested topics to search: "right of publicity" and "Nussenzweig v.
DiCorcia"
Mark
On 4/15/2015 11:48 PM, Igor PDML-StR wrote:
Reading previous responses, I had another old thought brought up to
the surface (and some corollaries).
1. If a photographer takes a photograph of person A, (a photo session
or a candid portrait), A buys (can buy) that photo. In the absence of
any explicit contract clause related to this, can yet another person,
B, buy the photo of A?
From the logic discussed in response to my earlier questions, - the
answer is "No" (or rather "not really").
If both A and B are in the photograph (a "group photo"), - then both A
and B can buy it. Now, if we consider the case in between the two, -
how much [*] of "B" must be in the photo to be able to buy the photo
of A?
[*] - What portion, e.g. a head, a portion of it, a hand, ..., or, -
in what capacity (in the foreground, in the background).
While this is primarily an "academic" consideration, - there could be
a practical case. E.g. if A is a celebrity walking on the street, and
B is passing by while the photograph is taken, managing to "get into
the picture". At what point can B _legally_ buy that photo?
2. And yet a different branch of the same thought process is related
to the studio question (1a in the previous message, below). I guess
there is a way how the studio can argue the legality: If the
instructor is present in the group photo, then the photo can be
legally purchased by (or on behalf) of the instructor. Then, it is now
the relation between the studio and its employee. So, assuming that
the instructor does not object the deal (sort of, the instructor hand
the picture on the studio's wall), then it is ok.
[The legality of such a transaction between the instructor and the
studio, especially since it involves a financial consideration, namely
the salary, is a grey area; it is too complicated to discuss it here.]
3. And finally, can a third party, C, _legally_ comission (a financial
transaction) a photo (say, as a piece of art) of a person A without a
release from A? (And not for the purpose of news publication.)
Because an alternative view of the same question is: can the
photographer make money legally from the photograph of A without a
release? And, from what I know, the answer to the latter formulation
of the question is "no".
If the answer to the first formulation is "no" (C cannot legally
comission a photo of A without a permission from A), then some might
already see a legal solution to that situation:
C comissions the photographer to take a photo of A, while asking B to
be in it. Then B allows C to have the photo that he legally buys from C.
[My inquisitive mind is starting thinking: in that case, would it be
legal for C to cut off a portion of the photo that contains "B". But
let's not venture into that.]
In all of this, I assume that the photo is otherwise taken legally
(e.g. on a public property, in a situation without an expectation of
privacy, not presenting the person in a wrong way, etc.)
I would be curious to hear what different PDMLers think about these
logical exercises. (I hope that maybe even the lurking Pentaxian,
laywer, M.G. would share his informal opinion.)
Cheers,
Igor
On Wed, 15 Apr 2015, Igor PDML-StR wrote:
I have a question for PDMLers who might have experience with that.
(I had never thought of these questions before...)
Let's consider a photo session (in studio or on location), and the
photographed subjects (or their parents) are ordering photographs
(specific example: individual and group photos of kids at school,
sport teams/dance studios...).
Question: Can the photographer use these photographs elsewhere
without an explicit model release(s)?
I would consider three sub-questions related to the purpose
1) for some explicit profit (e.g. sell to a 3rd party, including
stock, magazine, etc.)
1a) can the studio/venue where it happend (dance studio) buy the photo?
2) for advertizing purposes (on the photographer's website, on other
websites, in the printed ads)
3) without any profit or explicit advertisement purposes (e.g. on the
community website, free giveaway to some news media).
I know that under this conditions (unless specified otherwise in the
contract), the photographer keeps the copyright (even though it is a
work for hire). But what about the rights of the people imaged (in
the context lined out in the cases above)?
Thank you,
Igor
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